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PEER REVIEW & MEDICAL STAFF PRIVILEGES

The Medical Staff

healthcare-professional-license-defense-attorneysHospital medical staffs are among the most powerful, yet least regulated entities in medicine. Most doctors must carry medical staff privileges in one or more facilities in order to practice.  The medical staff is self-policing and is independent of the hospital.  Its functions include reviewing the care provided by its physician members to patients, and acting as a liaison between the hospital administration and individual physicians.  As a peer review body, the medical staff is responsible for shielding patients from incompetent or unstable physicians; at the same time, by controlling physicians' access to both the patients and the facilities, the medical staff wields the power to destroy a physician's professional career.

Physicians' Legal Rights

A physician has legal rights which protect his or her medical staff privileges.  In government-owned hospitals, these rights may be protected under the U.S. constitution, but in privately operated hospitals, constitutional rights may not apply, but California statutes also guarantee a fair procedure. Cases in which the power of the medical staff was abused for discriminatory or other improper motives led some states' courts and legislatures to gradually extend legal protections to physicians whose staff privileges are attacked.  Since the 1950's, California law has increasingly upheld the physician's fundamental right to fully practice his or her profession.  This right mandates fair procedures in medical staff disciplinary actions.  Fair procedure includes, at a minimum, adequate notice of the charges upon which the action is based and the opportunity to present evidence on one's own behalf to an unbiased decision maker.  The law also provides for the right to challenge any decision restricting or terminating privileges in the California courts.  While many other states have begun to address these issues, there is wide variance from state to state in the extent to which physicians' rights to practice in the hospital are able to be protected under the law.

Execution by Peer Review

In every state, physicians continue to run the risk of being maliciously targeted or "executed by peer review".   At every stage of the disciplinary process, the accused physician is at a tremendous disadvantage.  For the accused physician, the disciplinary hearing process is like being on trial for malpractice with one's own colleagues acting as witnesses, prosecutors and judges.  Dozens of charges may be leveled at one time.  Physicians usually have limited or no insurance coverage for the legal expenses of defense or recourse for the economic impact if the physician should not prevail. There is little opportunity to obtain discovery of all evidence before it is presented.  The medical staff committee selects the jury panel members and hearing officer (subject to the physician's challenges for bias, which are often overruled).  There is wide use of hearsay evidence, including medical opinions of experts who cannot be compelled to appear to be cross-examined.  There is frequently a denial of the assistance of counsel in the initial “informal” hearing.  In some states, witnesses in a peer review hearing may knowingly give false testimony, enjoying absolute immunity from civil suits for slander or malicious injury.  The hospital and medical staff members are also immune from suit under federal law, unless it is proven that they acted in bad faith when taking the peer review action.

Death Knell for the Physician's Career

A negative outcome for the physician in a medical staff peer review is a death knell.  By law in most states (including California), disciplinary actions must be reported by the hospital to both the state Medical Board and the National Practitioner Data Bank, a nationwide database accessible to hospitals and managed care organizations. The state Medical Board may commence its own investigation, finding the physician an easy target because damning evidence has already been compiled in the medical staff hearing.  Although the Medical Board may decide not to prosecute, it will do nothing to aid the physician to clear his or her name, regain staff privileges or obtain redress for the economic, professional and emotional injuries which have been sustained.  The physician's reputation and career may be ruined.

How Our California Physicians' Legal Rights Lawyer Can Help

California physicians' legal rights lawyers at the Law Firm of Marvin Firestone, MD•JD & Associates have been helping doctors, nurses, psychologists and others defend their professional licenses and staff privileges for over 33 years.  Our medical-legal experience may mean the difference in a professional’s career.  By getting involved immediately after the physician knows of an investigation by a medical staff peer review committee, we can help to control the investigative and formal hearing process, develop the evidence needed to defend the action, and uncover the true facts.  

Are You the Target of an Investigation by a Medical Staff Peer Review Committee?

If you are the target of an investigation by a medical staff peer review committee, don't delay seeking the advice and counsel of a professional. Fill out our online form or call 1-800-LAW-MDJD (1-800-529-6353) for a free phone consultation to speak to an attorney about your options.

We serve clients throughout California from convenient locations in San Mateo, San Jose, San Francisco, Oakland, Redding, Sacramento, Los Angeles, and San Diego.

Authored by Marvin Firestone

Healthcare License Defense Quick Facts:

  • California State Medical Board Powers
  • The Accusation
  • The Hearing
  • How We Can Help
The practice of medicine and other healing arts is closely regulated in the United States. In recent years, this regulation has increased at both the state and federal levels. Licensed physicians and other health care providers face potential disciplinary actions from multitude of public and privately operated agencies and other entities, including federal entitlement programs like Medicare and Medicaid, DEA, and managed care organizations quality assurance boards. However, the one agency which usually maintains the power to terminate a health care professional’s license to practice remains the state medical licensing board.
If a formal accusation has been filed, one must act decisively to mount a defense to the charges. Failure to act quickly may result in forfeiture of important legal rights. Legal rights which apply in malpractice suits may not be available, or may be strictly limited, in defending one’s license to practice. For example, in most states, including California, the provider’s right to obtain discovery of the evidence against him or her is much more limited in the administrative hearing than in civil court suits; written interrogatories and oral depositions are usually not allowed.
A health care provider is entitled to a formal hearing before his or her license may be restricted or revoked, but the nature and extent of the hearing may vary depending upon the state law, as well as how one responds to the accusation in the first instance. Agencies are granted a great deal of leeway in prosecuting licensees and are accorded wide deference by the courts when their final decisions are challenged as improper or unfair. A lawyer defending a license disciplinary action on behalf of a professional health care provider must be vigilant in protecting the professional’s constitutional rights of due process and preserving all objections for purposes of appeal. A provider who defends himself throughout the formal hearing process, and then comes to the lawyer when disciplinary sanctions have been imposed and the time for appeal is already running, stands less chance in reversing the agency’s order.
The Law Firm of Marvin Firestone, MD•JD & Associates has been helping doctors, nurses, psychologists and other healthcare professionals protect and defend their professional licenses for over 33 years. Our medical-legal experience may mean the difference in a professional’s career. By getting involved immediately after the physician or healthcare professional knows of an investigation of care, we can help to control the investigative and formal hearing process, develop the evidence needed to defend allegations, and uncover the true facts. If you are the target of an investigation or Board Accusation, don’t delay seeking the advice and counsel of a health or medical lawyer. To schedule a FREE initial phone consultation, fill out our online form or call us at 1-800-LAW-MDJD (1-800-529-6353). We serve clients throughout California.

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Law Firm of Marvin Firestone, MD-JD & Associates
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San Mateo, CA 94402
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